Third-party Plaintiff,

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1 "!. SHORT FORM ORDER SUPREME COURT OF THE STATE OF NEW YORK Present: HON. LAWRENCE J. BRENNAN Acting Justice Supreme Court x TRIAL P ART: 52 JOSE HERNANDEZ CONDAN ENTERPRISES Plaintiff, NASSAU COUNTY INDEX NO.: 5316/04 MOTION DATE: 4/17/06 SUBMIT DATE: 6/21/06 #11' Second Third-party Defendant x CONDAN ENTERPRISES, LLC, Third-party Plaintiff, ALEXANDER AVENU KOSHER RESTAURNT CORP., a/k/a ALEXAER KOSHER RESTAURNT CORP., d/b/a BEN' S DELI Third-party Second Third-party x CONDAN ENTERPRISES, LLC., -against- -against- -against- Sec()nd Third-party Plaintiff CIRCUIT CITY STORES, INC., and TRADER JOE' EAST INC., Second Third-party Second Defendants x

2 The following papers have been read on this motion: Notice of Motion dated 3/31/06 Memorandum of Law dated 4/17/06 Notice of Motion dated 4/17/06 Notice of Cross-Motion dated 4/28/06 Memorandum of Law in Opposition dated 5/11/06 Reply Affirmation in Further Support dated 5/11/06 Affirmation in Opposition to Cross-Motion dated 5/11/06 Condan s Affirmation in Opposition to Trader Joe s Motion dated 5/11/06 Affirmation in Opposition dated 5/11/06 Condan s Affirmation in Opposition dated 5/11/06 Affirmation in Opposition dated 5/25/06 Reply Affirmation dated 6/16/06 Reply to Trader Jose s Affirmation dated 6/19/06 Second Third-part Defendant, Trader Joe s East Inc. s ("Trader Joe motion, and the cross- motion of Defendant Third-par Plaintiff and Second Third-part Plaintiff, Condan Enterprises, LLC ("Condan ), both seeking summary judgment are denied for the reasons set forth herein. The cross-motion by Third-part Defendant, Alexander Avenue Kosher Restaurant Corp. a/a Alexander Kosher Restaurant Corp., d/b/a Ben s Deli ("Ben ), is granted only as to the extent that its motion for summary judgment will be considered, however Ben s request for summary relief is denied for the reasons set forth herein. Plaintiff commenced this action for injuries allegedly sustained in a slip and fall. Plaintiff was employed by Ben s when, on February , at approximately 7:00-7:30 P., he slipped on ice that had accumulated on an outside staircase that is attached to a loading dock which Ben s utilizes. Condan is the owner of the shopping center where the incident occurred. Trader Joe s is located next to Ben and Trader Joe s subleases the property from Second Third-part, Circuit City Stores, Inc. ("Circuit City"), (see Exhibit L annexed to Trader Joe s motion). Trader Joe s contends the sublease did not require Trader Joe s to clean off the ice and snow in the area where plaintiff fell. Trader Joe s alleges the ice was caused by a broken leader/gutter on the roof of the building and thus Trader Joe alleges that the incident was Condan s responsibility (see Exhibit J, pg. 56 annexed to Trader Joe s motion). Trader Joe s notes a rider to the lease giving it

3 responsibility to clear the area where the incident occurred was not in effect when the incident occurred (see Exhibit M, pgs. 15, 55). While Trader Joe s did occasionally remove snow and ice from the loading dock if necessary for Trader Joe s deliveries (see Exhibit 0, Pg. 9, annexed to Trader Joe s motion), no such deliveries were made on Sunday when plaintiff fell (see Exhibit P, the affidavit of Jill Napolitano, a Trader Joe s employee). Trader alleges it only had maintained the premises as defined in the sublease as the rentable square footage of the ground floor space (see Exhibit A, C, annexed to Trader Joe s reply affirmation) and not the loading dock/stairway thereto. One who assumes to act, even though not obligated to do so, may thereby become subject to the duty to act carefully (Janson Fidelity and Casualty Co., 79 NY2d 867). Thus, although Trader Joe s argues it was not required to clear the dock/stairway area, it has indicated that it did so. Condan contends Trader Joe assumed full responsibility for the loading dock/stairway area. Thus, there is an issue of fact as to whether Trader Joe s was responsible for the area, assumed it voluntarily, and if Trader Joe s maintained the area in a non-negligent manner. The above precludes a summary determination of Trader Joe s summary judgment motion. In its cross-motion for summary judgment, Condan contends the evidence fails to demonstrate that Condan created the icy condition or that Condan had notice of the condition. Condan notes the Circuit City lease requires indemnification except for Condan' s negligence. Condan denies it was negligent in any way. Condan cites the deposition testimony of its manager, Paul A. Bregman, that he, Mr. Bregman, was unaware of any gutter problem that would cause water to flow from the roof to the loading dock area and freeze (see Exhibit, pg annexed to Condan s cross motion). Condan contends by its lease with Circuit City (see Exhibit K annexed to Condan s motion), Circuit City must keep other improvements free and clear of ice, snow and debris" (Exhibit K, sec. 10 pg. 16). Condan contends such "other improvements" include the loading dock and the stairs that lead up to it. Condan also alleges that, as a subtenant to Circuit City (see Exhibit L anexed to Condan s motion), Trader Joe s had an obligation to clear the loading dock/stairs from ice and snow (Exhibit L, sec. 14, pg. 9). Circuit City denies its lease with Condan (see Exhibit C annexed to Circuit City' affirmation) required it to clean the loading dock/staircase of ice and snow. There is an issue as to whether Circuit City' s lease with Condan did require it to clean the ice and snow from the area where the incident occurred-did the staircase include other "improvements." Also, there are issues as to whether

4 Condan s conduct contributed to or caused the icy condition to occur. Evidence that a condition, Le., hazard, etc., was a recurring problem may be sufficient to show that a part had constructive notice of the problem (Hirschman City of New York 193 AD2d 581). Facts presented may show that a hazard allegedly accumulated gradually and that the process took a sufficient time so as to, at least, create an issue of fact as to whether or not a defendant would be charged with constructive notice of the condition (Padula Big V Supermarkets, Inc. 173 AD2d 1094). Here, the record demonstrates there are issues of fact as to whether or not Condan knew of the broken gutter or should have known of the broken gutter that caused ice to form on the stairway of the loading platform. As noted, Condan manager stated water falling from the roof (and any ice formed thereby) from a broken gutter would be Condan s responsibility (as to the roof and gutters; see Exhibit G, pg. 22 annexed to plaintiffs affirmation in opposition), and that the manager was unaware of the icing problem. Ben s employee stated that the icing was a recurring condition (see Exhibit I, pg. 47 annexed to plaintiffs affirmation in opposition), there is an issue of fact as to the icing condition and whether Condan knew or should have known about it. Credibility of witnesses, truthfulness and accuracy of testimony, whether contradicted or not, and the significance of weakesses and discrepancies are all issues for the trier of fact (Pedone vb B Equipment Co., Inc. 239 AD2d 397). Whether Condan was aware or should have been aware of any icing problem is for the jury to decide. As to the insurance issues, the record clearly reflects that Ben, Circuit City, and Trader Joe s all obtained liability insurance for Condan. The various carriers rejected Condan s claims as an additional insured. Contractually, the parties did obtain insurance, Condan may, if it chooses, bring declaratory relief motions as to the various carriers for their rejection of Condan s claims. Condan alleges that Trader Joe s was obligated to obtain $ in liability insurance (para 14(a) of the lease) but only obtained $ Since there are issues of ultimate responsibility and who could have been at fault and to what degree should responsibility/liability be apportioned, if any, the $ /$ issue could be moot as to Trader Joe s. Condan is free to pursue the issue after settlement or trial.

5 Also, except in cases where the defendant created the condition, a plaintiff must ultimately prove actual or constructive notice of the dangerous or defective condition and that there was a reasonable time within which to correct or warn of its existence (Madrid City of New York 42 NY2d 1039; Lewis MTA 99 AD2d 246, aff' d. 64 NY2d 670). Here, Condan s burden is to show prima facie that Condan did not have actual or constructive notice of the alleged defective or dangerous condition. Condan has not met this burden. As noted, Condan contentions notwithstanding, there are issues of fact as to whether Condan had or should have had notice of the icy condition. For these reasons, Condan s cross motion for summary relief must be rej ected. Ben s seeks to get an extension of time to file its cross motion wherein it seeks summary judgment as to Condan s third-part complaint. Based on the undisputed fact that the relevant filing of the Note of Issue date, the Court imposed deadline to file summary judgment was April 21, Thus, Ben s cross-motion is approximately one week late. Ben s contends it was not aware that the Note of Issue was filed for Ben s and alleges that Condan used the wrong or old address (Ben s had made the various parties herein aware of its new change of address; see ExhibitB anexed to Ben s cross-motion). Ben s notes a letter sent by a Supreme Court Justice was also returned for using the wrong or old address (see Exhibit A annexed to Ben s reply affidavit). The merits of a summary judgment motion made more than sixty (60) days after the Note of Issue was filed, should only be considered on a showing of "good cause" for the delay (Brill City of New York 2 NY3d 648; First Union Auto Finance, Inc. Donat 16 AD3d 372). "Good cause" is a satisfactory explanation for the untimeliness; no excuse at all or a perfunctory excuse, canot be "good cause (Polkhamus Foulke 20 AD3d 888). Based on the fact that Ben s cites the returned letter from the Supreme Court chambers as noted above, and the delay herein, once Ben s found out about the Note of Issue filing, was short, Ben s has shown "good cause" for the delay, Ben request for an extension is granted. The Court will now consider Ben s cross-motion. In its cross-motion, Ben states the plaintiff, an employee at Ben s when the incident occurred had already received Worker s Compensation benefits for his injuries (see Exhibit H annexed to Ben s motion).

6 A finding by a Workers' Compensation Board that an injury is compensable, until set aside, a final and conclusive determination which bars an action at law (Workers ' Compensation law 910; Dupkanicova James 17 AD3d 627). There is no evidence of "grave injury" by plaintiff which might provide the basis of a viable action as to Ben (see Sikorski Burroughs Drive Apartments, Inc., 306 AD2d 844). Also, Ben s has fulfilled an obligation to the landlord, Condan, as to obtaining insurance. Ben s provided insurance to include Condan as an additional insured but Ben s insurance carrier disclaimed coverage as to Condan due to late notice, etc., by Conlan (see Exhibit D annexed to Ben s affirmation in opposition dated May 11, 2006). The insurance carrier also concluded the icy condition was caused by Condan, and the carrier refused to cover Condan' s own alleged negligent acts. Clearly, neither Ben s nor the others are required to directly indemnify Condan for Condan s own acts of negligence (see Levine Shell Oil Co. 28 NY2d 205; Great Northern Insurance Co. Interior Construction Corp. 18 AD3d 371). As set forth in the sworn affidavit of Pasqua I Ruggiero, president of Ben, Ben s notified Condan of the leaking gutter that caused the ice to form on the steps when plaintiff fell (see Exhibit B, annexed to Ben s affidavit in opposition dated May ). However, there is still an issue of fact as to whether Ben s is responsible to Condan for all or part of the plaintiffs injury. The lease states Ben s is required to keep the loading dock area free of ice and snow (see Exhibit J, Sec (B), pg. 12 annexed to Condan s cross motion). Although Ben s apparently complied with that par of its obligation to obtain insurance for Condan, there is still an issue as to whether there exists a separate and distinct contractual issue of contribution/indemnification that Ben s might owe Condan (see Raquet Braun 90 NY2d 177) if Ben s was in any way responsible, in part or whole, for the incident. This issue of fact precludes summary judgment as to Ben s cross motion. It is so Ordered. Dated: July 31, 2006 NASSAU CO COUNTY CLERK'